The main legal point established in the judgment is the application of Order 45, Rule 4 of the Civil Procedure Code for the consolidation of suits and the consideration of the doctrine of approbate and reprobate in relation to the valuation given in the plaint.

Ramesam, J.

1. Of the above petitions C.M.Ps. Nos. 1338 and 1339 of 1929 are applications for leave to appeal to the Privy Council against our judgments and decrees in A.S. Nos. 244 and 245 of 1922, respectively. C.M.P. No. 1340 of 1929 is an application under Order 45, Rule 4 of the Civil Procedure Code for a consolidation of the other petitions for purposes of pecuniary valuation and hearing. It is convenient to take up the third petition in the first instance, as the disposal of the other two petitions depends upon the disposal of this to a certain extent. Under Order 45, Rule 4 of the Civil Procedure Code we have power to consolidate the two suits for purposes of valuation, if they are decided by the same judgment. In the High Court they are undoubtedly decided by the same judgment, but it is objected by the learned Government Pleader that they were not decided by the same judgment in the Lower Court and therefore Order 45, Rule 4 does not apply. But in the first place I think the word "judgment" in Order 45, Rule 4 means the judgment appealed against and has nothing to do with the judgments of the Courts below. (Vide Deokinandan Prasad v. Narsing Rant (1921) 6 Pat.L.J. 97.) It is true that if this condition is satisfied, we consolidate not merely the appeals before us but all the proceedings in the suits. Moreover, a comparison of the so-called separate judgments of the first Court shows that the second judgment in A.S. No. 245 is practically a copy of the first Courts judgment re-written omitting a few sentences or paragraphs. Except that two sentences in the third sub-paragraph of paragraph 2 are omitted and paragraph 4 (the summary of the 3rd defendants written statement which is unnecessary for the other cases) is also omitted, the judgment is identical up to paragraph 22. Paragraph 23 in the first case is not reproduced in the second case as it refers to a point which does not arise in the second case. The rest of the judgment is again identical. In a matter of this kind we think we should look to "the spirit of the rule and not the letter. This is the view taken by the learned Judges of the Bombay High Court in Jivangiri v. Gajanan Narayan I.L.R. (1926) 50 B. 753. I think that the judgments of the Lower Court must be regarded as the same judgment and therefore the objection of the learned Government Pleader is disallowed. We are prepared to consolidate the value of the suits if it is of any use to the petitioner.

2. This leads us to the next question whether, even after the consolidation, the value of the two suits together exceeds Rs. 10,000. When these petitions came on for disposal before us last time, we called for a report from the Subordinate Judge of Bezwada as to the value of the lands now and at the time of the suits.

3. In the view I now take, probably it would have been unnecessary to call for such a report as to the valuation of the lands at the time of the suit if an order was passed on the petition for consolidation. But, at that time, we passed no orders on the petition for consolidation. We simply said we would call for a report and dispose of the petition after the report is received. The report of the Subordinate Judge now is that the value of the lands in the first suit is Rs. 3,954, and in the second suit Rs. 5,868 omitting annas and pies. These values together with the value of the mesne profits claimed by the plaintiff prior to the plaint will certainly make the value Rs. 10,000. But the value of the two suits at the time of the suit does not amount to Rs. 10,000 according to his present report. In the first case he found the value to be Rs. 3,217 and in the second case he found it to be Rs. 4,085. These two values with the amount of mesne profits claimed do not bring the value up to Rs. 10,000. It is claimed by the learned Advocate-General appearing for the petitioner that it is not open to the respondent to go below the value given to these suits in the plaint because he adopted those value